Cumulation of dismissal indemnities
Court of Cassation puts an end to the accumulation of certain termination indemnities
On 12 October 2026, the Court of Cassation ruled in three judgments on the cumulation of certain termination indemnities.
In all three cases, the Court rejected the cumulation.
According to the Court, it is not the legal classification of the claim that is decisive, but the damage being compensated. Compensation intended to remedy the same damage cannot be combined.
These judgements are favourable to employers. Below, we discuss the three rulings and their significance for employers.
Manifestly unreasonable dismissal (Collective Labour Agreement No. 109) and abuse of the right to dismiss
In the first judgment, an employee had, on appeal, been awarded both compensation for manifestly unreasonable dismissal under Collective Labour Agreement No. 109 and separate compensation for abuse of the right to dismiss.
The trial court based its decision on the fact that the employer had first imposed various disciplinary sanctions, then allowed the employee to continue working for a further three months and subsequently dismissed him based on the same facts. Furthermore, the employee had not been given a further hearing beforehand.
The Court of Cassation confirmed that compensation for abuse of the right to dismiss may, in principle, be combined with severance pay. However, this does not apply where both forms of compensation are based on exactly the same facts and the same assessment of those facts.
As both the manifestly unreasonable dismissal and the alleged abuse of the right to dismiss arose from the same set of facts, the compensation effectively covered the same loss. It was therefore not possible to combine the two forms of compensation.
Manifestly unreasonable dismissal and discrimination on grounds of health
The second judgment concerned an employee who was dismissed on grounds of his state of health. The trial court ruled that the dismissal was discriminatory and, on that basis, awarded a lump-sum discrimination compensation equivalent to six months’ gross salary. In addition, it also awarded compensation for manifestly unreasonable dismissal based on Collective Labour Agreement No. 109.
Article 9(3) of Collective Labour Agreement No. 109 expressly stipulates that this compensation cannot be combined with any other compensation payable by the employer following the termination of the employment contract, with the exception of a notice payment, a non-competition payment, an eviction indemnity, or supplementary compensation paid in addition to social security benefits.
The Court of Cassation confirms that a lump-sum compensation for discrimination does not fall within the scope of this provision.
The Court further finds that the manifest unreasonableness of the dismissal was derived exclusively from the established discrimination.
In other words: the manifest unreasonableness was not an additional ground for dismissal, but the direct consequence of the discrimination. In such a situation, both forms of compensation remedy the same loss, and cumulation is excluded.
Compensation for a protected employee representative and discrimination on grounds of trade union affiliation
The third judgment concerned an employee representative who was dismissed without compliance with the special protection against dismissal provided for in the Act of 19 March 1991. As the trial court found that the dismissal was linked to the trade union mandate, it awarded both the protection compensation and compensation for discrimination on the grounds of trade union affiliation.
The Court of Cassation concluded, based on the legislative history, that the protection against dismissal for employee representatives essentially constitutes a specific application of the general prohibition on discrimination on grounds of trade union affiliation.
Both provisions protect the employee representative against the same risk and, in principle, compensate for the same material and non-pecuniary damage. Where the dismissal stems precisely from the employee’s trade union status, a separate lump-sum compensation for discrimination equal to six months’ gross salary can therefore no longer be awarded in addition to the protection payment.
What does this mean for employers?
The judgements provide employers with greater clarity when assessing the financial risks of dismissal claims and offer grounds for challenging double compensation for the same dismissal.
Where different claims for compensation are based on the same facts and the same underlying reasoning, it will therefore not be possible to award them cumulatively. Employees cannot, therefore, be compensated multiple times for the same loss. It must therefore be assessed in each case whether the various claims compensate for different losses or merely apply different legal classifications to the same facts. According to the recent case law of the Court of Cassation, compensation can only be cumulated in the former case.
